Americans With Disabilities Act Checklist
By Michele Ballard Miller, who is a shareholder in Miller Law Group in San Francisco. The firm represents management in employment litigation and counseling.
Under Federal Law, employers are required to engage in a good-faith interactive process with a disabled employee to determine a reasonable workplace accommodation. (Americans with Disabilities Act (42 U.S.C. §§ 12101-12213), as amended by the ADA Amendments Act (Pub. L. No. 110-325).) Some state disability-bias laws – including California’s – impose similar requirements. (See Cal. Gov’t Code §§ 12926, 12940.) Yet the reasonable-accommodation obligation continues to be hotly contested in disability-discrimination litigation.
The following checklist will guide employers to properly handle accommodation requests.
1. Develop a consistent policy.
Train managers and supervisors about what to do when they receive an accommodation request. Standardize documentation and procedures for consistency in handling such requests.
2. Enable employees to request accommodations.
An employer’s obligation to engage in the interactive process is triggered whenever it becomes aware that an employee has a disability and requests an accommodation. There may also be an obligation, regardless of notice, if the employer knows (or should know) that a disabled employee is having difficulty doing his or her job. Employers should notify employees that the company provides reasonable accommodation to employees with disabilities, and specify whom to contact. Make it clear that it is the employee’s responsibility to request an accommodation.
3. Analyze essential job functions.
Having detailed job descriptions identifying essential job functions will allow the employer to determine whether a reasonable accommodation would enable the employee to perform them.
4. Consult with the employee.
The first step in the interactive process is to meet with the employee to discuss his or her specific limitations and needs. Ask the employee directly about what type of accommodation would be most effective. Consider having the employee obtain suggestions from his or her health-care provider. Remember, however, that employees are not required to identify an effective accommodation so long as they can describe the work-related problems posed by the disability.
5. Respond promptly.
Don’t let too much time pass once the employee makes an accommodation request. Employers must act promptly to begin the process and provide a reasonable accommodation, if appropriate. Failing to promptly respond to an accommodation request can constitute a violation of the ADA and expose an employer to liability.
6. Weigh accommodations.
Once a disabled employee’s specific limitations have been identified, the next step is to determine what would constitute a reasonable accommodation. Reasonable accommodation might include providing special equipment, restructuring the job, providing a leave of absence, modifying the work schedule, or reassigning the employee. If a reasonable accommodation is not readily apparent, the employer may need to seek outside advice.
7. Choose among effective options.
Employers need to assess the effectiveness of various accommodation options. If there are several options, and one is less expensive, an employer can choose that option so long as it effectively removes the workplace barrier. The employer has the ultimate discretion to choose an effective accommodation, but the disabled employee’s preferences should be considered. While it may not be possible to require an employee to accept a particular accommodation, an employee who refuses to accept a genuinely effective accommodation may not be qualified to remain in the job.
8. Keep the employee informed.
If there is an unavoidable delay in implementing the accommodation – for example, special equipment will take time to arrive – inform the employee of your efforts and the anticipated time table, and determine whether temporary interim measures are appropriate.
9. Keep the door open.
Providing a reasonable accommodation does not end an employer’s obligations. Continue to monitor the situation to ensure that the accommodation enables the employee to perform the essential job functions. If the accommodation is not effective in eliminating workplace barriers, continue efforts to find an effective accommodation, in consultation with the employee.
10. Document scrupulously.
Always document consultations with the employee and any efforts made to identify and provide a reasonable accommodation. Written confirmation of every accommodation considered and offered should be sent to the employee, so he or she cannot later deny that a particular accommodation was considered or offered. Documentation carries an additional benefit, for it prompts careful review of the required actions.
The ADA’s reasonable-accommodation process can be very complex. Employers that adopt a consistent and practical policy for dealing with accommodation issues – and that meticulously document their efforts, in consultation with knowledgeable employment law counsel – will go a long way toward minimizing potential liability.